IN THE 34TH JUDICIAL DISTRICT COURT

EL PASO COUNTY, TEXAS Z0!3 FEB 12 PH l;: 05

STATE OF TEXAS, § § § § § § § § § § § §

EL ?t.S0 COUNTY. TEXAS

Ex. Rei. JO ANNE BERNAL, County Attorney,

Relator,

v.

MARIA REYES, GLORIA M. RODRIGUEZ, MARY B. GARCIA, JESUS "JESSE" GANDARA, JR., and GUILLERMO "WILLIE " MADRID,

Mayor Pro Tern and Socorro City Council § Members, §

Respondents. §

8'(

No. 2013-DCV-0574

INFORMATION IN THE NATURE OF QUO WARRANTO AND REQUEST FOR TEMPORARY RESTRAINING ORDER

DEPUTY

COMES NOW, the State of Texas, by and through El Paso County Attorney Jo Anne

Bernal, and complains of MARIA REYES, GLORIA M. RODRIGUEZ, MARY B. GARCIA,

JESUS "Jesse" GANDARA, JR., and GUILLERMO "Willie" MADRID, Respondents, Mayor

Pro Tern and City Council members for Socorro, Texas. In support of such this Information,

Relator would respectfully show the Court the following.

I. Parties and Jurisdiction

l . Relator is the State of Texas represented by the El Paso County Attorney pursuant to section

66.002 of the Texas Civil Practice and Remedies Code ("CPRC"). Tex. Civ. Prac. & Rem.

Code §66.001, et seq., (Vernon 2012).

2. This action is brought by the State of Texas and at the behest of El Paso County and 40 persons

who own land and/or operate businesses in the unincorporated area known as San Elizario and

who have an interest in the proposed annexation by the City of Socorro.

Information in the Form of Quo Warranto 1

3. Respondents are Maria Reyes, Gloria M. Rodriguez, Mary B. Garcia, Jesus “Jesse” Gandara,

Jr., and Guillermo “Willie” Madrid purported council members of the City of Socorro,

Texas. Service in this matter will be effectuated by personal service on (Kathleen – pls

confirm that Wallace will accept service) Mr. Jerry Wallace, counsel for the City of Socorro,

at Blanco, Ordonez, Mata & Wallace LCC., 5715 Cromo Drive, El Paso, TX 79912, OR as

they may be found:

a. Maria Reyes, 729 Grijalva Drive., Socorro, Texas 79927.

b. Gloria Macias Rodriguez, 10027 Oslo, Socorro, Texas 79927.

c. Mary B. Garcia, 505 Nelda Candelaria, Socorro, Texas 79927.

d. Jesus “Jesse” Gandara, Jr., 386 Vineyard, Socorro, Texas 79927.

e. Guillermo “Willie” Madrid, Jr., 251 Isabel Way, Socorro, Texas 79927.

4. Pursuant to CPRC §66.001, this Court has jurisdiction to grant a Writ of Quo Warranto if:

(1) a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office, including an office in a corporation created by the authority of this state;

(3) an association of persons acts as a corporation without being legally incorporated;

(5) a corporation exercises power not granted by law.

Tex. Civ. Prac. & Rem. Code §66.001.

5. The only proper method for attacking the validity of a city’s annexation of territory is by quo

warranto proceeding, which must be brought by the State to question the irregular use of

authority by a municipality. Werthmann v. City of Fort Worth, 121 S.W. 3d 803, 805 (Tex.

App. – Ft. Worth 2003, no pet).

6. This Court is vested with original jurisdiction in Quo Warranto proceedings regardless of the

amount in controversy. McCall v. Manny, 16 S.W.2d 809 (Tex. 1929).

7. Discovery Control Plan: This case is governed by discovery control plan Level I, as

provided by Tex. R. Civ. P. 190.2.

8. Relator challenges the proposed annexation by the City of Socorro of land owned by the

County of El Paso found in Parcel 7 and legally described as follows:

Parcel 1, a parcel of land being a portion of Tract 1J, C.D. Stewart No. 324,

and a portion of Tract 6A1, Block 4, Socorro Grant, EL Paso County Texas.

Parcel 2, a parcel of land being a portion of Tract 1J, C.D. Stewart Survey No.

324, El Paso County, Texas.

The two parcels of land consist of approximately 16.798 acres and approximately 16.509 acres

respecting and totaling 33.307 acres of land.

9. Relator also challenges the purported annexation of lands not owned by the County but located

in the Historic District of San Elizario, Texas. The El Paso Mission Trail Historical area was

created pursuant to Texas Local Government Code section 271.171 et. seq and is subject to

County regulation pursuant to Texas Local Government Code Sec. 271.173.

II. Facts and Allegations

10. The City of Socorro Charter was originally adopted on November 6, 2001 and provides for

annexation authority by the municipality. Socorro City Charter, Sec. 2.03.

11. Relator challenges the City of Socorro’s right to proceed with annexation in any form insofar

as the authority of those persons purporting to sit as city council members is the subject of a

related legal challenge.

12. In the State of Texas, Ex Rel. Jaime Esparza, No. 2013DCV0429, 346th District Court, the

State of Texas, through District Attorney Jaime Esparza, is challenging the right of each

member of the City Council of Socorro Texas to hold office. The District Attorney’s quo

warranto petition does not address or seek relief regarding the proposed annexation by the

City of Socorro.

13. It is axiomatic that a city council without legal authority to hold office has no legal authority

to proceed with the annexation of private and public lands.

14. The members of Socorro City Council are without authority to act on the annexation because

the City has unlawfully extended the terms of office for each of its council members.

15. In 2008, the City of Socorro altered its existing structure by moving to a system in which

all City Council Members would be elected from single-member districts numbered 1, 2, 3,

4 and designated an "At Large" position, all of whom would serve three-year terms,

together with the Mayor, on a staggered basis determined initially by lot. See, Sample

Ballot for City of Socorro Election, Amendment Nos. 1, 2 & 3 (May 10, 2008).

16. To allow for staggered terms in 2010, Council Members from Districts 1, 2 and 3 would

serve an initial three-year term, while the Mayor, the Representative-at-Large, and the

District 4 Representative would each serve an initial two-year term. Thereafter, all six

positions would serve three-year terms starting in 2012 and 2013. See, Socorro city

Charter §3.01(c); Socorro City Ordinance No. 275 (February 18, 2010).

17. On May 8, 2010, the terms of each member of Socorro City Council were determined by

the voters pursuant to a Charter Amendment to be as follows:

• Mayor Trinidad Lopez: elected to a TWO yr term ending May 8, 2012;

• Councilman Jesse Gándara (Dist 4) elected to a TWO yr term ending May 8, 2012;

• Councilman Guillermo Madrid (At-large) elected to a TWO yr term ending May 8, 2012;

• Councilwoman Maria Reyes (Dist 1) elected to a THREE yr term ending May 8, 2013;

• Councilwoman Gloria Rodriguez (Dist 2) elected to a THREE yr term ending May 8,

2013;

• Councilwoman Mary Garcia (Dist 3) elected to a THREE yr term ending May 8, 2013.

(See Exhibits No. 1A and 1B)

18. Upon completion of the 2010 terms, an noted above, each position would be elected for

three-year terms beginning in 2012 (Districts 1, 2 and 3) and 2013 (Mayor, Member

At-Large, District 4). Socorro CITY CHARTER §3.01(c); SOCORRO CITY ORDINANCE

No. 275 (February 18, 2010).

19. According to the City Charter, "regular city elections shall be held on the first Saturday in

May, or on the closest date to the first Saturday in May permitted by the laws of the State of

Texas." See Sec. 6.01, Socorro CITY CHARTER, as amended May 14, 2011. Accordingly,

regular elections were due to be held on or about May 5, 2012. However, regular elections

were not conducted on that date or any other date since the May 8, 2010 election.

20. On or about December 5, 2011, Socorro City Council posted an item on its Notice of Regular

Council Meeting, to wit: "10. Introduction, First Reading, and Calling for Public Hearing on

an ordinance/resolution changing the date for City of Socorro General Elections as

authorized by Texas Senate Bill 100," enacted by the 82nd Legislature of the State of Texas

(hereinafter "SB 100").

21. The original draft of the ordinance proposed to implement SB 100 for the City of Socorro,

subsequently passed and adopted as Ordinance 299, would have extended the terms of each

member of the City Council by six months, moving the date of the May 12, 2012, election to

the next uniform election date in November 2012.

22. On or about December 12, 2011, a different draft of Ordinance 299 was presented at second

reading. This version of Ordinance 299 was adopted upon the vote of three council members,

which apparently constituted a quorum pursuant to Socorro City Charter, §3.07 B.

23. A true and correct copy of Ordinance 299 as adopted is attached hereto as Exhibit No. 2 and

incorporated by reference the same as if fully copied and set forth at length.

24. On August 2, 2012, the Honorable State Representative Joseph Pickett, requested an attorney

general opinion seeking clarification of the application of Senate Bill 100 specifically with

regard to the City of Socorro’s actions in purporting to implement Senate Bill 100.

25. On August 7, 2012, the Honorable State Senator Jose Rodriguez sent a letter to the Socorro

City Council alerting the Council to the misapplication of Senate Bill 100 and specifically

informing them that it was his opinion that their actions were in violation of the law. (See

Exhibit No.3)

26. On January 29, 2013, the Texas Attorney General issued an opinion interpreting the

application of SB 100 stating that:

a) Under article XI, section 11(a) of the Texas Constitution, a court would likely

conclude that a home-rule municipality may not change its city council terms from

three years to four years without a charter amendment. Further, to the extent the

City of Socorro’s city council terms exceed four years, they are contrary to article

XI, section 11(a) of the Texas Constitution. (See Exhibit No. 4).

Tex. Atty Gen. Op. No. GA-0985 (2013).

27. Relator adopts the factual assertions made by the State of Texas in the quo warranto action

filed in CN 2013DCV0429.

28. The Attorney General Opinion makes clear that the City of Socorro has failed to properly

interpret and apply the provisions of SB100. In misapplying SB100, the terms of office for

the existing office holders are extended as follows:

• Mayor: extended to November 2013 resulting in a term of 3.5 years and 18 months beyond his elected term of office;

• At large: extended to November 2013 resulting in a term of 3.5 years and 18 months beyond his elected term of office;

• Dist. 1: extended to November 2014 resulting in a term of 4.5 years and 18 months beyond her elected term of office;

• Dist. 2: extended to November 2014 resulting in a term of 4.5 years and 18 months beyond her elected term of office;

• Dist. 3: extended to November 2014 resulting in a term of 4.5 years and 18 months beyond her elected term of office; and,

• Dist. 4: extended to November 2013 resulting in a term of 3.5 years and 18 months beyond his elected term of office.

(See Exhibit No. 5).

29. The Texas Constitution makes clear that it is unlawful for any office holder to hold office

beyond a 4-year term. Tex. Const. Art. XI, §11(a) TEX. CONSTITUTION (1876).

Accordingly, the terms of office for office holders in Districts 1, 2, and 3 are in violation of

the Texas Constitution.

30. The Attorney General opinion has likewise made clear that no term of office may be

extended absent a lawful charter amendment. In this instance, the City of Socorro extended

its terms of office pursuant to a resolution and therefore has acted contrary to established law.

Accordingly, every member of the Socorro City Council is serving a term of office which as

unlawfully been extended without a Charter Amendment.

31. Unfortunately, the illegality of acting without a Charter Amendment cannot easily be cured

and judicial intervention is required. Art. 11, §5 (b) of the Texas Constitution provides that

"no city charter shall be altered, amended or repealed oftener than every two years," and art.

11, §5(a) provides that "no charter or any ordinance passed under said charter shall

contain any provision inconsistent with the Constitution of the State, or of the general

laws enacted by the Legislature of this State." The Socorro City Charter was most recently

amended less than two years ago, on May 14, 2011, pursuant to a charter amendment

election so no immediate Charter election can be called.

32. On or about February 7, 2013, the City of Socorro instituted annexation proceedings by

having the first reading of an ordinance to annex land owned by El Paso County. The parcels

of County land are projected to be used for regional draining within the US Army Corps of

Engineers Sparks Arroyo Project. To date the County of El Paso has invested approximately

$2.4 million in acquisition and site preparation for this purpose. Continued participation by

the County in this project is jeopardized by the City of Socorro’s planned annexation of this

land.

33. On February 11, 2013 the City of Socorro posted Regular Agenda Item No. 11, an item

calling for . . . “Second Reading and Adoption of Ordinance 313, an ordinance annexing . .

. territory to the City of Socorro and extending the boundaries of said city. . . . . .” It

appears that this action scheduled to be voted upon February 14, 2013, may complete the

annexation process.

34. The institution of annexation proceedings has begun a ninety (90)-day clock by which

annexation must be completed. See TEX. LOC. GOV’T CODE Section 43.064

35. The running of this ninety (90)-day period is tolled by court order.

36. The authority of Socorro’s purported city officers to act on behalf of the city is in question and

forms the basis of this Information in Quo Warranto.

III. Request for Temporary Restraining Order

37. Relator is the State of Texas, who, by and through County Attorney Jo Anne Bernal, seeks

relief against the purported city council and mayor of the City of Socorro.

38. Respondents are Maria Reyes, Gloria M. Rodriguez, Mary B. Garcia, Jesus “Jesse” Gandara,

Jr., and Guillermo “Willie” Madrid purported council members of the City of Socorro,

Texas, who are individuals who may be served with process as delineated hereinabove.

39. The court has jurisdiction over Respondents because Respondents are Texas residents. The

Court further has jurisdiction over this cause of action pursuant to CPRC §66.001.

40. Venue is proper in El Paso County, Texas because Respondents reside in El Paso County and

the cause of action occurred in El Paso County.

41. Relator fully incorporates by reference the facts set forth above in support of its Request for

Temporary Restraining Order.

42. Relator asserts a cause of action pursuant to CPRC § 66.001 in asserting its right to pursue an

action in the nature of a quo warranto.

43. Relator seeks a temporary restraining order preventing the Respondents, its employees and

agents from exercising any authority or control pursuant to their purported authority as

Mayor Pro Tem and City Council of Socorro, Texas with regard to annexation.

44. It is probable that Relator will ultimately be successful in this cause of action because the

office holders of the City Council are not validly in office. The Texas Attorney General has

opined that article XI, section 11(a) of the Texas Constitution prohibits the City of Socorro

changing its council terms from three years to four years without a charter amendment and

further, that this same constitutional provision is violated to the extent that council terms

exceed four years. See Tex Atty. Gen. Op. No. GA-0985.

45. If Relator's application is not granted, harm is imminent because Respondents will continue

to exercise their purported authority to annex and affect citizens in the Socorro area as well

as land owned by the County of El Paso.

46. The harm that will result if the Temporary Restraining Order is not issued is irreparable

because the purported city officials will continue to exercise unlawful control over the

residents in the attempt to annex land belonging to El Paso County and persons who own

land in the surrounding area. Said action appears imminent as referenced in the Facts and

allegations herein.

47. Unless a Temporary Restraining Order is granted, the Sparks Arroyo Project could be

jeopardized insofar as it calls into immediate question the continued development of the

regional project by the Corp of Engineers.

48. Relator has no adequate remedy at law because the only lawful means to challenge the

validity of a city’s annexation is through a quo warranto action.

49. State law contemplates the issuance of a court order to halt annexation procedures by a

municipality and provides that the running of this 90 day period during which a municipality

must complete its annexation process can be stopped by court order. Tex. Local Gov’t

Code Sec. 43.064(a). Accordingly, Respondents will not suffer financial harm upon the

issuance of a TRO because the tolling provision set forth in Sec. 43.064(a) allows the City to

proceed with its annexation plan if it is successful in this action.

50. Relator is willing to post bond if the court deems it appropriate and requests that any such

bond be set at a nominal amount.

51. For these reasons, Relator asks that the court grant a temporary restraining order prohibiting

the Respondents, their agents and employees from exercising any authority in their purported

capacities as Mayor Pro Tem and City Council of Socorro, Texas to proceed with planned

annexation.

IV. Request for Temporary Restraining Order and Injunction

Because the Respondents have engaged in the unlawful acts and practices described above,

Respondents have violated the laws set forth herein. Unless restrained by this Honorable Court,

Respondents may continue to violate laws of the State of Texas and continue to cause immediate

and irreparable injury, loss and damage to the State of Texas and to the general public. Relator

the STATE OF TEXAS by and through the COUNTY ATTORNEY OF EL PASO, TEXAS, JO ANNE

BERNAL respectfully requests that after notice and hearing this court issue a permanent injunction

restraining and enjoining Respondents Respondents’ agents, servants, employees, attorneys, and

any other person in active concert or participation with Respondents, from engaging in the

following acts or practices:

a. Taking any action in furtherance of annexation proceedings until a

ruling by the Court as to respondents’ authority to hold office.

VI. Request for Declaratory Relief

Pursuant to CPRC Chapter 37 Sec. 37.001 et seq. Relator respectfully requests the issuance of a

declaratory judgment declaring that Respondents lack authority to hold office and accordingly

are without authority to proceed with the City’s proposed annexation.

V. Prayer

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Respondents be cited

according to law to appear and answer herein; that after due notice and hearing a TEMPORARY

RESTRAINING ORDER AND TEMPORARY INJUNCTION be issued; and upon final hearing

a PERMANENT INJUNCTION be issued, restraining and enjoining Respondents, Respondents’

affiliates, officers, agents, servants, employees and attorneys and any other person in active

concert or participation with Respondents from engaging in the following acts or practices:

a) Taking any action in furtherance of annexation;

In addition, Relator the STATE OF TEXAS, by and through the COUNTY ATTORNEY OF EL PASO,

TEXAS, JO ANNE BERNAL respectfully prays that this court will enter judgment removing the

Respondents from office; enter judgment for costs of prosecution in favor of Relator and

imposing fines against Respondents for usurping, intruding into, or unlawfully holding and

executing their offices, all pursuant to Civil Practice and Remedies Code Section 66.003.

Relator prays that the Court grant all other relief to which Relator the STATE OF TEXAS by and

through the COUNTY ATTORNEY OF EL PASO, TEXAS, JO ANNE BERNAL may show itself entitled.

Respectfully Submitted,

JO ANNE BERNAL EL PASO COUNTY ATTORNEY 500 E. San Antonio, Room 503 E1 Paso, Texas 79901 Bus: (915) 546-2050 Fax: (915) 546-21 3

County 2\ttorney Texas Bar No. 02208720

JOSE M. GONZALEZ Texas BarNo. 08129225 First Assistant

MANUEL ROMERO Texas Bar No. 24041817

KATHLEEN C. ANDERSON Texas Bar No. 01196400

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument was served to James Wallace, Blanco Ordonez Mata & Wallace, P.C., 5715 Cromo Drive, E1 Paso, Texas 79912, on the JE_ 7'C!ay of February, 2013.

J�j�RNJ�iJ ------------ ---------

Information in the Form of Quo Warranto II

STATE OF TEXAS

COUNTY OF EL PASO

VERIFICATION

§

§

§

Before me, the undersigned authority, on this day personally appeared JO ANNE

BERNAL, County Attorney, known to me to be the person whose name is subscribed

below, and upon first being duly sworn, on her oath deposed and stated that she has read the

foregoing document and that every statement contained therein are true and correct, to the

best of my knowledge.

SUBSCRIBED AND SWORN TO before me by JO ANNE BERNAL, on this the 12'h day of February, 2013. ----�

N� St te of Texas

My commission expires:

2010 2011 2012 2013

End of term as extended by ordinance #299

11/5/2013

Special election for Mayor, Dist 4 and “At Large” Seats

5/11/2013

Original end of term for “At Large” Guillermo Madrid

Original end of term for Dist 4 Jesse Gándara

Original end of term for Mayor Trinidad Lopez

5/8/2012

Adoption of Ordinance # 299

12/9/2011

Socorro Municipal Election

5/8/2010

2 years – Original term of office for: Mayor Trinidad “Trini” Lopez Dist 4 Jesse Gándara “At Large” Guillermo Madrid

Unlawful extension of terms as per ordinance # 299

18 months

Terms of Office Mayor, “At Large”, and Dist 4

2010 2013 2014

End of term as extended by ordinance #299

11/4/2014 Original end of term for Dist 3 Mary Garcia

Original end of term for Dist 2 Gloria Rodriguez

Original end of term for Dist 1 Maria Reyes

5/08/2013

Adoption of Ordinance # 299

12/9/2011

Socorro Municipal Election

5/8/2010

3 years – Original term of office for: Dist 1 Maria Reyes Dist 2 Gloria Rodriguez Dist 3 Mary Garcia

Unlawful extension of terms as per ordinance # 299

18 months

Terms of Office Council Dists 1, 2 and 3

2012 2011

TriniLopez Mayor

Guillermo Madrid, ./,, At Large

Maria Reyes Di'!ltrict 1

Manuel Rubio rflv r'JPI'k

ORDINANCE NO. 299

Gloria Macias Rodriguez District 2

Mary G. Garcia District 3

lesus Gandara, .Jr. District4

Alejandro Vidales, .h Interim City Manager

AN ORDINANCE/RESOLUTION OF THE CITY OF SOCORRO, TEXAS

PURSUANT TO TEXAS HOUSE BILL 1545 AND TEXAS SENATE BILL 100 DIRECTING THAT THE ELECTION FOR MEMBERS OF THE SOCORRO

CITY COUNCIL BE CHANGED FROM MAY OF EACH YEAR TO THE

NOVEMBER UNIFORM ELECTION DATE, EXTENDING COUNCIL

MEMBERS TERMS OF OFFICE AND DIRECTING THAT TERMS OF

OFFICE FOR MEMBERS OF THE CITY COUNL'IL CONTINUE TO BE

STAGGERED WITH THE ELECTIONS FOR MEMBERS' TERMS IN

FUTURE YEARS TO BE CONDUCTED ON THE NOVEMBER UNIFORM

ELECTION DATE, AND DIRECTING THAT THIS CHANGE IN ELECTION

PRACTICE AND PROCEDURE BE SUBMITTED TO THE ASSISTANT

UNITED STATES ATTORNEY GENERAL FOR CIVIL RIGHTS PURSUANT

TO THE TERMS AND PROVISIONS OF THE FEDERAL VOTING RIGHTS

ACT OF 1965 (42 USC 1973 (c)) AND FOR ALL OTHER MATTERS

GERMANE THERETO.

WHEREAS, the Federal Help America Vote Act of2002 (HA VA) , found in 42 U.S .. C. § 15 48l( a)( 3) , mandates that for elections in which a federal office is on the ballot, each polling place must be equipped with an electronic voting machine to facilitate voting by those with disabilities; and

WHEREAS, the Texas Legislature implemented HA VA in the 200 3 regular session with the passage of House Bill 15 49 , but expanded the scope of the electronic voting machine requirement to apply to any election held in the state, with limited exceptions; and

WHEREAS, the federal Military and Overseas Voter Act of2009 (MOVE Act) , found in 42 U.S.C.. § 1 97 3fi�l , provides for an extended timetable in which absentee bal lots be transmitted to uniformed and overseas citizens at least 45 days prior to an election; and

WHEREAS, the Texas Legislature implemented the MOVE Act in 2011 with the passage of Senate Bill 100 , which overlaid the period between the state's pdmary and primary runoff election upon the most commonly--used uniform election date for the municipal general election, which is the second Saturday in May; and

City ofSoco"o, Texas Ordinance No. Page2

WHEREAS, the City of Socorro cuuently holds its genetal election on the unifmm election date on the second Saturday in May; and

WHEREAS, pursuant to Senate Bill 100 and other statutory and state constitutional provisions, the City of Socorro is, through the adoption of this Ordinance/Resolution making best effmts to modifY its election procedures to be in compliance with Senate Bill 100 and other federal and state laws; and

WHEREAS, by the communication dated June 24 , 2011 the Texas Secretary of State has recommended that the City of Socorro consider changes to its election schedule and procedures because of the changes in Texas State Election Laws to implement the Military and Overseas Voter Empowerment Act; and

WHEREAS, Texas House Bill 1545 Adopted at the 2011 Legislative Session authmizes Socorro to change the date on which it holds its general municipal election for members of the City Council from May to the November uniform election date; and,

WHEREAS, Texas Senate Bill 100 Adopted at the 2011 Legislative Session authmizes the following changes in election practices and procedures:

A. Implements the Federal Military and Overseas Voter Empowerment Act by requiring the early voting clerk to make registration and absentee ballots available to overseas military voters at least 45 days before an election involving a federal or statewide office; and,

B.. Provides that a county elections administrator is not requit·ed to enter into a contract to fiunish election services with a city for the May unifmm election date; and,

C. Allows a home-rule city to change the date on which it holds its general election from the May uniform election date to the November unifmm election date through the adoption of a resolution that supersedes a city chatter provision requiting a different election date; and,

D.. Allows a home--rule city to provide for the election of all members of the governing body at the same election through the adoption of a resolution that supersedes a city charter provision establishing staggered terms of office; and,

E. Provides that a member of a city council with a term of office of more than two year·s that holds over in office in accordance with Article XVI, Section 17 of the Texas Constitution to confmm to a new election rules and procedures does not create a vacancy in the office by doing so, thereby elinrinating the need for a special election called within 120 days of the vacancy; and,

F. Authorizes a political subdivision that elects the members of its governing body to a term that consists of an odd number of year·s to adopt to change election

City oj Soco"o• Texas Ordinance No.. Page3

rules and procedures at any time piior to December 31 , 2012 changing the length of terms of its members to an even number of years ..

WHEREAS, in order to comply with these new election procedures and to assure that the City of Socono may continue to have the option of contracting with the El Paso Elections Department to conduct municipal elections; and,

WHEREAS, the City Council believes that changing the regular municipal election fiom May to November will increase voter participation and tum out in Socorro's municipal elections; and,

WHEREAS, the City Council has been advised by the City Attorney as well as the Secretary of State and Texas Municipal League Legal Services that the statutes referenced above authorize the change of dates for municipal elections fiom May, as set fmth in the City Charter, to the November uniform election date without the necessity of amending the City Charter in advance of said change; and,

WHEREAS, for all the reasons stated herein the City of Socmro City Council believes that it is in the best interest of the voters and residents of the City of Socorro to effectuate these changes in election dates and procedures.

NOW THEREFORE; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOCORRO, TEXAS THAT:

SECTION 1. FINDINGS ..

That the matters and facts stated in the preamble hereof are found, determined and adjudicated to be true and correct

SECTION 2. CHANGE OF ELECTION DATE.

That the date for all City of Socono General Municipal Elections heretofore held on the second Saturday in May, be and same is hereby changed, and will hereafter be conducted on the November uniform election date as established by the Texas Election Code ..

SECTION 3. TERMS OF OFFICE SOCORRO CITY COUNCIL

The term of office for members of the Socouo City Council is hereby changed fiom three year terms to four (4) year terms, to be staggered as herein set forth, and with members to serve four (4) year terms .. Existing terms of office ar·e hereby extended to provide staggered terms and no vacancy in office shall be created by said change in terms of offices or extension of terms of offices.

City of Soco"o, 1'exas Ordinance No. Page4

SECTION 4. STAGGERING OF TERMS MAYOR. COUNCILMAN AT-LARGE AND

DISTRICT 1.:.

So as to permit staggering of the tenus of office for the Socorro City Council, as required by the City Charter, Council members' tenus of office will continue to be staggered so that the Mayor, Councilman At-Large and District 4 are elected at the November 2013 Uniform Election Date, and Districts 1 , 2 and 3 are elected at the November 2014 Uniform Election Date. All tenns of office for members of the Socorro City Council shall be four ( 4) years, and shall run from November through November of the fourth year after the member is elected ..

SECTION 5. STAGGERING OF TERMS DISTRICTS 1, 2 AND 3.

That the election for Socorro Mayor, At--Large City Council member and Socono City Council District 4 will be conducted at the November 2013 Unifonn Election Date .. The current members of the City Council will continue to serve in their curTent positions until their positions are filled at the November general election set fmth herein. Council members elected for Council Districts

1 , 2 and 3 will be chosen at the November 2014 Uniform Election Date .. Council members will continue to be elected to four ( 4 ) year staggered terms in accord with this schedule.

SECTION 6. QUALIFICATION OF CANDIDATES.

That the provisions of the Socono City Charter for the qualifications of candidates and the certification of candidates shall remain in full force and effect with the exception of the change of election date, terms of office, extension of terms of existing council members, and resulting filing deadlines and runoff elections that pertain to the November uniform election date.

SECTION 7. VOTING RIGHTS PREC'LEARANCE.

That the City Attomey is hereby authorized to submit this change in election procedure to the Assistant United States Attomey General, Civil Rights Division, for preclear·ance pursuant to Section 5 of the Voting Rights Act of1965 (42 USC 1973(c)); and, the City Manager and City Attomey are hereby authorized and directed to take all other steps and actions necessary to implement this resolution and the changes contained herein.

&E:[ION 8. SEVERANCE.

Should any section or part of this Ordinance be held unconstitutional, illegal, or invalid, or the application to any person or circumstance for any reasons thereof ineffective or inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or part shall in no way affect, impair, or invalidate the remaining portion or portions thereof; but as to such remaining portion or portions, the same shall be and remain in full force and effect and to this end the provisions of this resolution ar-e declar·ed to be severable.

City ojSoco"o, Texas Ordinance N()... PageS

SECTION 9. REPEALER.

All Ordinances or parts of Ordinances in conflict herewith shall be and the same are hereby repealed, but only to the extent of such conflict..

SECTION 10. EFFECTWE DATE

This ordinance shall be effective innnediately fmm and after fmal adoption by City CounciL

ENACTMENT

That this Ordinance was du1y enacted with all the requisites and formalities incident to the enactment of ordinances, and such is evidenced by the below signatures.

PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SOCORRO, TEXAS AFTER PUBLISHING NOTICE OF HEARING AND CONDUCTING A PUBLIC HEARING THEREON.

This l21h day ofDecember, 2011.

ATTEST:

CAPITOL OFFICE

ROOM E1.712

P.O. Box 12068

AUSTIN, TEXAS 78711

(512) 463-0129

(512) 463-7100 FAX

JOSE R. RODRIGUEZ

The Honorable Trini Lopez The Honorable Maria Reyes The Honorable Gloria Macias Rodriguez The Honorable Mary B. Garcia The Honorable Jesus Gandara, Jr. The Honorable Guillermo Madrid, Jr. 124 S. Horizon Socorro, Texas 79927

RE: Ordinance 299

Dear Mayor and City Councilmembers:

STATE SENATOR

DISTRICT 29

August 7, 2012

DISTRICT OFFICE

100 N. OCHOA ST., SUITE A

EL PASO, TEXAS 79901

(915) 351-3500

(915) 351-3579 FAX

I write to you regarding several issues surrounding an election ordinance recently passed by the City of Socorro. As some of you are aware, during the past several months, my office has received numerous calls from constituents who are concerned about Ordinance 299, which was passed by the City of Socorro on December 12, 2011 (see enclosure). The ordinance made the following changes to the City Charter:

• Increased term length of City Council members from three to four years • Changed election dates for the Mayor, Councilman at Large, and District 4

positions from May 2012 to November 2013

• Changed election dates for the District 1, 2 and 3 positions from May 2013 to November 2014

As you know, any changes to existing election laws must be submitted to the U.S. Department of Justice (DOJ) for preclearance before the changes can take effect. Although Section 7 of the ordinance authorized the City Attorney to submit the changes to the DOJ over seven months ago, it is my understanding that these changes were only submitted to the DOJ within the last week.

COMMITTEES

JURISPRUDENCE, VICE CHAIR W: HEALTH & HUMAN SERVICES W: INTERNATIONAL RELATIONS & TRADE W: NOMINATIONS

VETERAN AFFAIRS & MILITARY INSTALLATIONS I i

In addition, based on consultations with attorneys at the Secretaryi of State's office and the Texas Municipal League, the City of Socorro is required to hold an electibn to allow voters to approve (or reject) the changes to election dates and term length made by! Ordinance 299. The Texas Constitution requires voters to approve charter amendments for home-rule cities, and no provision of Senate Bill 100 alters or negates this requirement.

1

Furthermore, Article XI, Section 11 of the Texas Constitution sp�cifically requires an election when term length is changed to four years.

·

Sec. 11. TERM OF OFFICE EXCEEDING TWO YEARS IN H OME RULE AND GENERALLAWCITIES; VACANCIES

1

(a) A Home Rule City may provide by charter or charter amendment, and a city, town or I

village operating under the general laws may provide by majoritj; vote of the qualified voters voting at an election called for that purpose, for a longer t�rm of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years; provided, however, that tenure under Civil Service shall not be affected hereby; provided, however, that such officers, elective or appointive, are subject to Section 65(b), Article XVI, of this Constitution, providing for automatic resignafion in certain circumstances, in the same manner as a county or district officer: to which that section applies.

(b) A municipality so providing a term exceeding two (2) years but not exceeding four ( 4) years for any of its non-civil service officers must elect all of the members of its governing body by majority vote of the qualified voters in such �unicipality, and any vacancy or vacancies occurring on such governing body shall not be filled by appointment but must be filled by majority vote of the qualified vpters at a special election called for such purpose within one hundred and twenty (120) days after such vacancy or vacancies occur.

My office has contacted the City Clerk's office and the City Attqrney several times to inquire about the date for a charter amendment election but it appears th�t an election for this purpose is not on the calendar.

' I

Simply stated, without preclearance from the DOJ and a charter i:unendment election, the adopted City ordinance cannot be implemented.

Under current law, the elections for the positions of Mayor, Cou:hcilman at Large, and District 4 should have been held in May 2012. To date, since the chang�s to the election dates have not been approved by the DOJ and a charter amendment election h�s not been held, I have grave concerns that the Mayor and the two City Council members may not legitimately be holding office, and therefore, all actions taken by the City may be subjed to challenge.

I have expressed these concerns in writing to the City Attorney, Jerry Wallace, on June 7,

2012 and then on June 15, 2012. Although Mr. Wallace initially replied to a part of my inquiry, I have yet to receive a response that addresses the above noted concern�. Given the serious

nature of this issue and the potential disenfranchisement of the citizens oi Socorro, I have met with the El Paso County Attorney and the District Attorney to discuss thi� matter.

With less than 90 days until the November general election date, tou have limited time to address these issues. Given the urgency of this matter, I would appreciat� your prompt response on whether you will take the necessary steps to bring the City of Socorro /into compliance with state and federal law.

Sincerely,

Jose Rodriguez

cc: The Honorable Hope Andrade, Texas Secretary of State The Honorable Jo Anne Bernal, County Attorney The Honorable Jaime Esparza, District Attorney

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

The Honorable Joseph C. Pickett Chair, House Committee on Defense

and Veterans' Affairs Texas House of Representatives Post Office Box 2910 Austin, Texas 78768

Dear Representative Pickett:

January 29, 2013

Opinion No. GA-0985

Re: Whether a home-rule city may change the terms of its officers from three to four years without first adopting a charter amendment (RQ-1077-GA)

You present two questions about the propriety of actions taken by a home-rule city in general, and by the City of Socorro (the "City") specifically, under the authority of Senate Bill 100.1 Adopted by the Eighty-second Legislature, Senate Bill 100 implements in Texas the Federal Military and Overseas Voter Empowerment Act. See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, 2011 Tex. Gen. Laws 3804, 3804 (preamble). Most of its election related provisions are now codified in the Election Code. See id. §§ 1-45, at 3804-16 (containing provisions amending the Election Code). For example, subsection 41.001(d) of the Election Code provides that a county elections administrator is not required to enter into contracts to furnish election services for an election held in May in even-numbered years. See TEX. ELEC. CODE ANN. § 41.001(d) (West Supp. 2012). Other codified provisions govern changes to a political subdivision's election date and the elimination of staggered-year elections for home-rule municipality council positions. See id. § 41.0052(a).

The uncodified provision in Senate Bill 100 that pertains to your question is section 52. Section 52 is another provision to aid in the transition away from May elections in even-numbered years and provides that:

(a) This section applies only to a political subdivision that elects the members of its governing body to a term that consists of an odd number of years.

(b) Not later than December 1, 2012, the governing body of the political subdivision may adopt a resolution changing the length of

1See Letter from Honorable Joseph C. Pickett, Chair, Defense & Veterans' Affairs Comm., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 2, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

The Honorable Joseph C. Pickett - Page 2 (GA-0985 )

the terms of its members to an even number of years. The resolution must specify the manner in which the transition from the length of the former term to the modified term is made. The transition must begin with the first regular election for members of the governing body that occurs after January 1, 2013, and a member who serves on that date shall serve the remainder of that term.

See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, §52, 2011 Tex. Gen. Laws 3804, 3817.

You first ask whether article XI, section 11 (a) of the Texas Constitution requires a charter amendment if a home-rule municipality seeks to lengthen the terms of office to four years. See Request Letter at 2. Article XI, section ll(a) provides that "[a] home-rule city may provide by charter or charter amendment, . . . for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years." TEX. CONST. art. XI,§ 11(a). By its plain language, article XI, section 11(a) requires that a home-rule municipality that wishes to establish terms of office longer than two years must do so by charter amendment. See TEX. CONST. art. XI,§ 11(a), Harris Cnty. Hasp. Dist. v. Tomball Reg'l Hasp., 283 S.W.3d 838, 842 (Tex. 2009) (relying heavily on the literal text of a constitutional provision to give effect to its plain language); see also id. art. XI, § 5 (providing that home-rule municipalities "may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters"). Whether a municipality currently employs two-year or three-year terms, a term of four years is itself "a longer term of office then two (2) years" and thus falls squarely within the scope of article XI, section 11(a). Accordingly, a court would likely conclude that a home-rule municipality may not extend its council terms from three years to four years without a charter amendment.

Your second question concerns the specific election schedule selected by the City. You indicate that the City has provided for an election for half of the members of its governing body in November of2013 and the other half in November of2014. See Request Letter at 1-2. You suggest the City should have scheduled its elections for November of 2012 and 2013, and you ask whether article XI, section 11 (a) prohibits four-and-a-half year terms during the period of transition to another election date. See id. at2. Article XI, section 11(a) of the Texas Constitution expressly, and without exception, provides that the terms of office for city officials in a home-rule municipality may not exceed four years. TEX. CONST. art. XI,§ 11(a). To the extent the City's council terms exceed four years, they are contrary to article XI, section 11(a).

The Honorable Joseph C. Pickett - Page 3 (GA-0985 )

SUMMARY

Under article XI, section 11 (a) of the Texas Constitution, a court would likely conclude that a home-rule municipality may not change its city council terms from three years to four years without a charter amendment.

To the extent the City of Socorro's city council terms exceed four years, they are contrary to article XI, section 11(a) of the Texas Constitution.

DANIEL T. HODGE First Assistant Attorney General

JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel

JASON BOATRIGHT Chairman, Opinion Committee

Charlotte M. Harper

Very truly yours,

Assistant Attorney General, Opinion Committee

Position Name ElectedScheduled to Expire Expiration Date As Per Ordinance 299 Result

Mayor Trini Lopez 11-8-2011 * 5/8/2012 11/5/2013 3.5 yr. term. 18 months over

At Large Guillermo Madrid 5/8/2010 5/8/2012 11/5/2013 3.5 yr. term. 18 months over

Dist 1 Maria Reyes 5-14-2011 * 5/8/2013 11/4/2014 4.5 yr. term. 18 months over

Dist 2 Gloria Rodriguez 5/8/2010 5/8/2013 11/4/2014 4.5 yr. term. 18 months over

Dist 3 Mary Garcia 5/8/2010 5/8/2013 11/4/2014 4.5 yr. term. 18 months over

Dist 4 Jesse Gandara 5/8/2010 5/8/2012 11/5/2013 3.5 yr. term. 18 months over

* Unexpired Term